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IN THE HIGH COURT OF JUDICATURE AT MADRAS
T. RAVINDRAN, J.
Panneer - Appellant
Vs.
Anjalai (Deceased) Represented by her Power Agent, Jayakumar and Ors. - Respondents
S.A. No. 220 of 2015 and C.M.P. No. 14602 of 2018 & M.P. No. 1 of 2015
Decided On : 17-09-2018
Evidence Act - section 114 - Challenge in this Second Appeal is made to the judgment and Decree passed in A.S.No.22 on the file of the Court of Principal Subordinate Court, reversing the judgment and decree passed in O.S.No.98 on the file of the Court of District Munsif, - Plaintiff in brief is that the suit property belong to the plaintiff and in her possession and enjoyment and recognizing her title, possession and enjoyment, the Government had granted patta in favour of the plaintiff in respect of the suit property and plaintiff is residing with her son in her sons residence and the suit property is lying contiguous to the house of plaintiffs son as a site on the northern side and to the north of the suit property, defendants house and backyard is located and the plaintiff has filed a plan along with the plaint and in the plan, the suit property has been shown as “ABCD” and dividing the suit property and the defendants property, survey stones are available, however there is no fencing between the suit property and the defendants property and taking advantage of the same, the defendant had attempted to trespass and encroach into the suit property with his men and money power and left with no other alternative, according to the plaintiff, she has been necessitated to lay the suit for appropriate relief’s - Defendant had disputed the claim of the plaintiff as having title to the suit property stoutly - According defendant, plaintiff has no title, possession and enjoyment of the suit property and it is contended by the defendant that the plaintiff has laid a false case claiming as if she has title to the suit property without any basis -Held, Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side ,first appellate court while deciding the case against him opined that the defendant should have produced the certified copy of Ex.B1 for explaining the correct survey number available in Ex.B1 original sale deed - However, in light of the above discussions, when the validity of Ex.B1 in detail need not to be gone into in the present suit as the present suit is only a suit for bare injunction and when prima facie, plaintiff has failed to establish her claim of title, legal possession and enjoyment of the suit property an accordingly found to be not entitled to the grant of relief of permanent injunction in respect of the suit property, it is seen that the projected additional evidence by the defendant is not required to be considered as such for deciding the question of title of the defendant and his predecessors in interest in respect of the suit property - In the light of the abovesaid factors, the judgment and decree passed in A.S.No.22 on the file of the Court of Principal Subordinate Judge, are set aside and the judgment and decree passed in O.S.No.98 on the file of the Court of District Munsif, are confirmed - Accordingly, the Second Appeal is allowed C.M.P.No.14602 is dismissed – Consequently, connected miscellaneous petition is closed.
Parties and Suit Details: Challenge in Second Appeal (S.A. No. 220 of 2015) to judgment in A.S. No. 22 of 2012 by Principal Subordinate Court, Mayiladuthurai, reversing trial court decree in O.S. No. 98 of 2008 by District Munsif, Sirkali; suit for permanent injunction over suit property (natham site, 175 sq.m or 4 cents, shown as ABCD in plaint plan). (!) [21001291340002]
Plaintiff's Case: Suit property belongs to plaintiff, in her possession; government granted patta (Ex.A1) recognizing title and possession; plaintiff resides with son Kullan, suit property north of son's house, south of defendant's house/backyard; no fencing, defendant attempting trespass/encroachment. [21001291340003]
Defendant's Case: Denies plaintiff's title/possession; suit property in defendant's possession since 1994; purchased via agreement (30.06.2007) and sale deed (20.06.2008) from Chinnathambi's heirs; Chinnathambi bought from Nagapillai (14.07.1945, Ex.B1); patta (Ex.A1) unrelated; suit not maintainable, property misdescribed. [21001291340004]
Evidence: Plaintiff: P.W.1-3, Exs.A1-A7 (patta, house tax receipts). Defendant: D.W.1-5, Exs.B1-B20 (sale deeds). Trial court dismissed suit; first appellate court allowed plaintiff's appeal, decreed injunction. [21001291340005][21001291340006]
Substantial Questions of Law: (a) Trial court finding on no declaration prayer ignored? (b) First appellate decree vitiated without addressing maintainability? (c) Injunction error ignoring no plaintiff title vs. defendant's Ex.B1? (d) Plaintiff cannot succeed on Ex.A1 alone vs. defendant's parent deed. (!) (!) (!) (!)
Plaintiff's Claim Analysis: Relies on Ex.A1 patta (Thoraya/rough patta, notice for objections); no proof of regular patta post-objections or notice to defendant; vague ancestral title claim, no title deeds; plaintiff absent from witness box (adverse inference under Evidence Act S.114); power agent (P.W.1, grandson) unable to trace title/possession. [21001291340008][21001291340009][21001291340016] (!) (!) (!) (!)
House Tax Receipts (Exs.A2-A7): No door numbers (admitted for some); post-suit for others; plaint describes vacant site, no plea of thatched house (later claimed dilapidated); unrelated to suit property. [21001291340015]
Maintainability of Suit: Bare injunction suit; defendant repudiated title, set up own title (Ex.B1, survey 533/9A); plaintiff must seek declaration where title disputed/under cloud/threat of dispossession; no amendment despite defense; courts should not decide title extensively. [21001291340011] (!) (!) [21001291340013]
First Appellate Court's Errors: Extensively analyzed title (held both failed, but favored Ex.A1 as natham patta + tax receipts); misread Ex.B1 survey (533/9A, "A" misread as "O"); ignored maintainability, no direction for declaration amendment; relied on defense defects over plaintiff's failure. [21001291340013][21001291340014][21001291340017][21001291340018]
Defendant's Title (Ex.B1): 1945 sale deed for 533/9A (8 cents); first appellate misread survey/boundaries (old deed, boundaries change); no need for deep probe as suit for bare injunction, plaintiff failed prima facie. [21001291340018][21001291340019]
Outcome: Plaintiff failed to prove title/possession; Ex.A1 not title document; suit not sustainable without declaration; first appellate judgment/decree set aside, trial court decree confirmed; Second Appeal allowed. [21001291340017][21001291340019][21001291340021]
Additional Evidence (C.M.P. No. 14602/2018): Defendant's certified Ex.B1 copy rejected; unnecessary as suit for injunction, no title decision needed. (!) [21001291340020]
Challenge in this Second Appeal is made to the judgment and Decree dated 12.08.2014 passed in A.S.No.22 of 2012 on the file of the Court of Principal Subordinate Court, Mayiladuthurai reversing the judgment and decree dated 30.01.2012 passed in O.S.No.98 of 2008 on the file of the Court of District Munsif, Sirkali.
2. The parties are referred to as per the rankings in the trial court.
3. Suit for permanent injunction.
4. The case of the plaintiff in brief is that the suit property belong to the plaintiff and in her possession and enjoyment and recognizing her title, possession and enjoyment, the Government had granted patta in favour of the plaintiff in respect of the suit property and the plaintiff is residing with her son Kullan in her son's residence and the suit property is lying contiguous to the house of the plaintiff's son as a site on the northern side and to the north of the suit property, the defendant's house and backyard is located and the plaintiff has filed a plan along with the plaint and in the plan, the suit property has been shown as “ABCD” and dividing the suit property and the defendant's property, survey stones are available, however there is no fencing between the suit property and the defendant's property and taking advantage of the same, the defendant had attempted to trespass and encroach into the suit property with his men and money power and left with no other alternative, according to the plaintiff, she has been necessitated to lay the suit for appropriate relief’s.
5. The case of the defendant in brief is that the suit laid by the plaintiff is not maintainable either in law or on facts. It is false to state that the suit property belongs to the plaintiff and the same is in her possession and enjoyment. The abovesaid facts are stoutly disputed. On the other hand, the suit property has been in the possession and enjoyment of the defendant right from 1994 onwards and it is false to state that the Government had granted patta in respect of the suit property and the patta projected by the plaintiff does not relate to the suit property. The plaintiff is residing with her son and it is true that the suit property lies on the southern side of the defendant's house and the suit property originally belonged to one Chinnathambi and the said Chinnathambi purchased the suit property on 14.07.1945 from Nagapillai and after his demise, the suit property was enjoyed by his legal heirs and the defendant had purchased the suit property from the legal heirs of Chinnathambi and with reference to the same, a sale agreement had been entered into on 30.06.2007 and the suit property had been entrusted with the possession and enjoyment of the defendant pursuant to the sale agreement and accordingly, the defendant had been enjoying the suit property along with his property lying on the northern side and following the sale agreement, the defendant had purchased the suit property by way of a registered sale deed from the legal heirs of Chinnathambi on 20.06.2008 and enjoying the suit property as the absolute owner thereof and it is false to state that survey stones are available between the suit property and the defendant's property and it is false to state that the defendant has been attempting to trespass and encroach into the suit property unlawfully. The plaintiff has no cause of action and the suit property has not been properly described and the particulars of the suit property given in the plaint are incorrect. The plaintiff is not entitled to obtain the relief sought for and hence the suit is liable to be dismissed.
6. In support of the plaintiff's case, P.Ws.1 to 3 were examined. Exs.A1 to A7 were marked. On the side of the defendant, D.Ws.1 to 5 were examined. Exs.B1 to B20 were marked.
7. On a consideration of the oral and documentary evidence adduced by the respective parties and the submissions made, the trial court was pleased to dismiss the suit. On appeal, the first appellate court was pleased to set-aside
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